Lawsuit Challenges Warrantless Searches of Arrestees' Cellphones

Come to think of it, the mobile phone has morphed into an extension of our associates, too.

All the while, however, police in some states, including California, inspect mobile phones of anybody arrested, without a warrant, based on the legal theory that officers have a right to review the belongings of those they apprehend.

But the American Civil Liberties Union is trying to change that with a novel legal theory. On Wednesday, it sued the San Francisco Police Department, claiming the warrantless search of arrestees' mobile phones not only breaches the First Amendment right of those arrested, but also violates the same rights of those in the suspect's phone contacts, Facebook feed and text messages, etc.

"By searching the contents of the cell phones of arrestees without a warrant and in situations that lack exigency, defendants have violated and continue to violate arrestees' and their associates' right to privacy, arrestees' and their associates' right to be free from unreasonable searches and seizures, and arrestees' and their associates' rights to freedom of speech," according to the suit. (.pdf)

The dispute is part of an emerging and larger debate in the digital age over whether judges should be required to authorize the police to inspect e-mail and cloud-stored documents, and whether the phone companies should produce a mobile phone's location history without a warrant.

The lawsuit comes almost two years after California Gov. Jerry Brown vetoed legislation requiring police to obtain a court warrant to search the mobile phones of suspects when they are arrested. The California Supreme Court also ruled in 2011 that the warrantless searches of arrestees' mobile phones did not breach the Fourth Amendment right to be free from unreasonable search and seizure.

"This points out another aspect that has not been examined: Cell phones contain information not just about the arrestee, but everybody the arrestee talks to, associates with and hangs out with," Linda Lye, an ACLU attorney, said in a telephone interview.

The case concerns Robert Martin Offer-Westort, an advocate for the homeless who was arrested last year for camping out in a San Francisco park while protesting a city anti-camping ordinance.

Local police read his text messages and continued to do so for weeks until the phone, an LG GU 295, was returned months later. It was seized as "evidence," according to the suit.